Appeal from the January 31, 2008, judgment of the United States District Court for the Southern District of New York (Robert W. Sweet, District Judge) sentencing the defendant to 87 months' imprisonment for interstate transportation of stolen property in violation of 18 U.S.C. § 2314. Defendant contends that he was improperly denied a minimal role adjustment that the District Judge had contemplated giving in a written sentencing opinion. We conclude that the decision not to impose the contemplated adjustment requires findings, and we remand for that purpose.
The opinion of the court was delivered by: Jon O. Newman, Circuit Judge.
Before: NEWMAN, POOLER, and KATZMANN, Circuit Judges.
This sentencing appeal challenges a District Judge's denial at a sentencing hearing of a minimal role adjustment, U.S.S.G. § 3B1.2(a), in making a Sentencing Guidelines calculation after the Judge had stated in a carefully prepared "Sentencing Opinion" that the defendant was entitled to the adjustment. Kenny Ola Labbe, a citizen of Nigeria, appeals from the January 31, 2008, judgment of the United States District Court for the Southern District of New York (Robert W. Sweet, District Judge), sentencing him principally to 87 months' imprisonment upon his plea of guilty to interstate transportation of stolen property, in violation of 18 U.S.C. § 2314. Although we have no desire to inhibit the commendable practice of issuing an indication of a likely sentence in advance of a sentencing hearing, we conclude that procedural error occurs when a defendant is not alerted to a likely change from a judge's anticipated Guidelines calculation and when that change is not sufficiently supported by the Judge's findings. We therefore remand so that at a renewed sentencing hearing, Labbe, now on notice that a minimal role adjustment is likely to be denied, can personally and through counsel make a full argument for such an adjustment and so that the District Judge, after considering both the Government's and the defendant's presentations concerning that adjustment, make a fresh determination, supported by appropriate findings, as to whether an adjustment is warranted.
Labbe was indicted for transporting stolen property in interstate commerce, in violation of 18 U.S.C. § 2314, and conspiracy to commit that offense, in violation of 18 U.S.C. § 371. The conduct constituting the substantive offense was alleged to have occurred between December 2005 and January 2006. The conspiracy was alleged to have spanned the interval between 2002 and January 2006. These charges stemmed from an elaborate scheme to steal and cash checks sent to a lockbox maintained by JP Morgan Chase Bank ("Chase"). Chase account holders sent checks to the lockbox to be credited to their accounts. One of the conspirators stole quantities of checks from the lockbox. Another conspirator sent unsolicited e-mails to strangers throughout the United States claiming to seek help to complete a financial transaction. Some of these strangers became unwitting participants in the scheme by providing their names and addresses to conspirators. Conspirators removed the true payee's name from a stolen check and substituted the name of an unwitting participant. The altered check was then mailed to the participant, who deposited the check in his own account and wired a portion of the proceeds to an overseas bank account controlled by a conspirator.
Labbe pled guilty to both counts of the indictment. At the plea colloquy before a Magistrate Judge, he acknowledged that his acts constituted the elements of the charged offenses, but he asserted that he had not acted "in the way" the offenses were detailed in the indictment. Questioned carefully by the Magistrate Judge, Labbe stated that an individual had approached him and asked for help in mailing some checks. Labbe said an individual gave him a list of names, and Labbe had to match the list with certain checks, place addresses he had been given on envelopes, and send the checks from a Federal Express office. He was to do this during a brief interval while the individual was out of the country. Labbe admitted that he knew the checks were stolen, but denied knowing they had been altered. He subsequently told the Probation Department that he was promised some indefinite form of payment, which he never received, and that he pocketed only $400 that was left over from the funds given him to send the checks.
The Presentence Report ("PSR") began the Guidelines calculation with a base offense level of 6, see U.S.S.G. § 2B1.1(a)(2), added 20 levels for a loss greater then $7 million but less than $12 million, see id. § 2B1.1(b)(1)(K),*fn1 added 4 levels because the offense involved more than 50 victims, see id. § 2B1.1(b)(2)(B), and added 2 levels because a substantial part of the offense was committed outside the United States, see id. § 2B1.1(b)(9)(B). Subtracting 3 levels for acceptance of responsibility, see id. § 3E1.1(a), (b), the PSR arrived at an adjusted offense level of 29, which, with Criminal History Category III, yielded a sentencing range of 108 to 135 months. The PSR recommended a term of 108 months.
After receiving sentencing submissions from the Government and the defendant, Judge Sweet issued a 21-page "Sentencing Opinion," dated January 23, 2008. Describing the offense conduct, Judge Sweet wrote that Labbe and others "caused the stolen lockbox checks . . . to be altered" and "removed the original payees' names from the stolen checks and replaced them with the names of participating e-mail recipients," that Labbe sent packages of stolen checks via Federal Express to participating e-mail recipients, and that Labbe asked an internet café owner to scan and e-mail a document that contained a list of individuals, their contact information, and dollar amounts. Judge Sweet also stated that a Federal Express employee had told an FBI agent that Labbe had sent packages almost every weeknight from December 25, 2005, to January 23, 2006. Finally, Judge Sweet stated that various pieces of paper relating to the scheme had been discovered at Labbe's residence.
Using the 2007 Guidelines Manual, Judge Sweet calculated Labbe's adjusted offense level to be 23, following the PSR's calculation with one difference, which is relevant to this appeal. Judge Sweet wrote, "Because the defendant's role in the offense was minimal, he is entitled to a mitigating role decrease of four levels, pursuant to U.S.S.G. § 3B1.2(a)." That subsection provides for a four-level reduction of the offense level "[i]f the defendant was a minimal participant in any criminal activity." A two-level reduction is authorized if the defendant was a minor participant. See U.S.S.G. § 3B1.2(b). In Criminal History Category III, the adjusted offense level of 23 yielded a sentencing range of 57 to 71 months. Judge Sweet then considered the factors identified in 18 U.S.C. § 3553(a), determined that a Guidelines sentence was warranted, and concluded, "For the instant offense, Labbe is hereby sentenced [sic] to a term of 57 months' imprisonment and a term of supervised release of three years." He also ordered forfeiture of $44 million of currency and U.S. Postal Service money orders totaling approximately $25,000.
Also relevant to this appeal is the concluding sentence of the Sentencing Opinion: "The terms of this sentence are subject to modification at the sentencing hearing set for January 29, 2008."
Prior to the sentencing hearing, the Government sent Judge Sweet a letter, objecting to the Court's contemplated four-level reduction for a minimal role in the offense. The Government pointed out that Labbe's offense level was based only on the loss resulting from his own conduct in the conspiracy, i.e., mailing checks between December 25 and January 23. Specifically with respect to the minimal role reduction, the Government stated that Labbe had communicated with a co-conspirator in Nigeria, had "tried to send him a list of names and addresses ...